COURT FILE NO.: 646/04
DATE: 20050630
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
1166134 ONTARIO INC. c.o.b. as NASHVILLE NORTH
Appellant
- and -
REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO and PAULINE GLADSTONE
Respondents
David Shiller for the Appellant
Richard Kulis for the Respondents
HEARD: June 24, 2005
Pitt J.
REASONS FOR JUDGMENT
[1] There are two motions before me. The first (chronologically) is brought by the Appellant, 1166134 Ontario Inc. c.o.b. as Nashville North (“Nashville”) to vary the terms of an order of Lane J. made on December 17, 2004, staying an order that revoked Nashville’s liquor licence, on December 14, 2005 as a result of a series of incidents in 2003, including over-crowding, permitting drunkenness, serving intoxicated patrons, serious nuisances to neighbours due to noise and drunken patrons.
[2] The stay was granted pending the disposition of an appeal that was launched immediately following the revocation of the licence, and was granted on the condition that Nashville implement changes proposed by itself, and that Nashville operate within the law in every respect.
[3] The changes proposed by Nashville and made a condition of the stay focused primarily on the reduction in allowable capacity in precisely defined areas, increased security, integration of noise control mechanisms, and improving lines of communication with the community to facilitate the community’s input on noise control issues.
[4] Finally, Lane J.’s order granted leave to the Commission to move to remove the stay upon fresh grounds arising after the date of the order.
[5] Within days of Lane J.’s order, the Commission sought leave to lift the stay on a motion initially returnable on December 24, 2004. Due primarily to the circumstance that Nashville’s counsel was about to leave the country on vacation, I adjourned the motion to January 7, 2005, on which date Carnwath J. dismissed the Commission’s motion. Although, as I said earlier, the appeal was launched shortly after December 17, 2005, the appeal has not been perfected. I confess not to understand the reasons for the delay, and to be concerned that there does not seem to be any evidence of expedition in the pursuit of the appeal.
[6] The motion today seeks the following:
- An order varying the December 17, 2004 stay order made by the Honourable Mr. Justice Lane to allow 1166135 Ontario Inc. cob as Nashville North to open the back patio of its premises, at is discretion, provided that:
(a) the capacity of the back patio is limited to 185 persons;
(b) if the back patio is opened, the second floor of the premises, with the same capacity, will be closed; and
(c) if the back patio is opened, security personnel with counters will be stationed at the door between the back patio and the main room on the first floor of Nashville’s premises to control crowd flow between the two areas and ensure that the capacity of the main room is not exceeded.
[7] The grounds for the motion are that;
(a) The variation sought will not increase the overall capacity of Nashville’s premises.
(b) The variation sought will not prejudice the respondents in any way.
[8] The Commission opposes the relief for the following reasons:
(a) a single judge of this Honourable Court does not have jurisdiction to vary another decision of a single judge of this Honourable Court. See Devgan v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 4208 (Div. Ct.); 871491 Ontario Ltd. (c.o.b. Loeb Arnprior) v. Loeb Inc., [1996] O.J. No. 4002 (Div. Ct.);
(b) the Licensee has not complied with the conditions staying the Board’s decision to revoke the Licensee’s liquor licence, which were volunteered by the licensee and imposed by the Honourable Mr. Justice Lane;
(c) the Licensee is not advancing its appeal of the revocation of its liquor licence in an expeditious manner; and
(d) the request to vary the conditions is not minor and will have a significant additional negative impact on the neighbouring residents.
[9] The Commission also brings a countermotion to lift the stay imposed by Lane J. on the ground that Nashville has not complied with four of the conditions that it volunteered, and Lane J. imposed on December 14, 2004.
ANALYSIS
[10] I am of the view that there may be some merit to the jurisdictional issue raised by the Commission. However, I do not find it necessary to resolve that issue because I can dispose of the motion without attempting to resolve what may well prove to be a question of some complexity, in circumstances that I believe require some expedition, at least from the perspective of Nashville.
[11] I am not satisfied that Lane J., if sitting on this motion, would necessarily have acceded to Nashville’s request. While it appears true that the variation sought will not increase the overall capacity of the premises, it may have a greater impact especially on noise control, and to a lesser extent on security, than was contemplated in the carefully crafted order of Lane J. It could well be that on December 17, 2004, Nashville took into consideration the circumstance that the back patio would not be of much use in the winter, while it would be very useful in the summer. Nashville says that the coming of summer is a change in circumstances. I say it is a change that was readily and reasonably within the contemplation of Nashville when it made its proposals to Lane J.
[12] What is more, as I adumbrated earlier, Nashville, in my view, has not treated Lane J.’s order as interim relief while it vigorously prosecuted its appeal to have the issue of the legality of the revocation determined. Rather, it has pursued its appeal, in what appears to be, a leisurely manner, and is now attempting to change, for its own benefit, the terms it proposed itself on the motion before Lane J. Nashville proceeds as it does, knowing full well that the opposition to its operations in the community has not changed, partly because it has not reached out as much as it could to the community.
DISPOSITION
[13] I am not prepared to exercise my discretion, vigorously challenged by the Commission, to order this variation, and accordingly, the motion is dismissed.
[14] The Commission’s countermotion is also dismissed because I am not satisfied that the evidence proffered by the Commission to demonstrate that Nashville breached the conditions set out in Lane J.’s order, achieves its intended objective. In fact, I have not been persuaded that the countermotion was occasioned by anything more than the launching of Nashville’s motion.
[15] It is further ordered that the parties shall do whatever they can reasonably do to expedite the appeal.
[16] On consent of the parties, it is also ordered that the appeal shall be perfected by no later than July 31, 2005.
COSTS
[17] Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons.
Pitt J.
Released: June 30, 2005
COURT FILE NO.: 646/04
DATE: 20050630
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
1166134 ONTARIO INC. c.o.b. as NASHVILLE NORTH
Appellant
- and -
REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO and PAULINE GLADSTONE
Respondents
REASONS FOR JUDGMENT
Pitt J.
Released: June 30, 2005